As at least two federal circuits have said: “[s]hould [the] government someday decide to institute programs of mass surveillance of vehicular movements, it will be time enough to decide whether the Fourth Amendment should be interpreted to treat such surveillance as a search.”
And finding the tracker in order to remove it does not require some effort?
If the police are doing something wrong, waiting until they reach some arbitrarily high frequency before you are willing to rule against it is cowardace and a refusal to do your job, in my opinion.
Seems to me they are giving the legislature more then ample time for them to do their job. It would appear to me the court isn’t very interested in stepping in and creating law and are avoiding doing so at the cost of being called cowards. But they admit if they have to they will do legislatures job for them.
It is the legislatures job to write and make law to accommodate advances in technology.
To me this thread seems to be about blaming the courts for the gap in law rather then putting the blame where it belongs.
I’m not going to fight **Bricker **on the constitutionality of the law, because it seems to me it is.
Having said that, it’s a small step towards legal infrared/x-ray/whatever cameras that can look inside your house or very good mics that can hear you talking on the phone and even listen to the other guy.
Forget about warrantless taps, they won’t be needed.
Fortunately, that sort of behavior has been deemed an illegal search. From the previous page of this thread…
Magnetic GPS tracers. Does that sound suspiciously like the little Spiderman “spidey tracer” things from the comic book, or is it just me. 
I gotta say, I’d have a concern over “the gubmint” monitoring my comings and goings without some sort of justification - probable cause, reasonable suspicion or some sort of warrant.
Everyone seems worried about the police trespass onto one’s driveway. However, that’s probably not going to be enough, since there are many reasons police can come onto one’s property.
The issue is the trespass onto the car itself. As property, it qualifies for trespass to chattels, which has a cause for action when:
“(a) he dispossesses the other of the chattel, or (b) the chattel is impaired as to its condition, quality, or value, or © the possessor is deprived of the use of the chattel for a substantial time, or (d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest.”
Okay – time for a thought experiment. Say the police sneak onto your property and attach a 100-pound weight to your car. It doesn’t harm the car at all, and could be detached without causing damage. But they hide it in such a way that unless you do a thorough inspection of your car, you’re unlikely to find it.
You drive your car around for a few weeks. What happens? Your gas mileage goes down. You’ll probably end up effectively spending 3 to 5 cents more for every gallon of gas you would normally use. In this case, I think you can clearly make a case for “the chattel is impaired as to its condition, quality, or value” – the car’s performance is reduced, and you’re having to shell out more money to drive. Moreover, you own the gas itself in the car, and the police are effectively burning up some of that gas with their hidden weight. I think one could clearly make a case for trespass to chattels in this instance.
Okay, but these devices weigh much less – maybe a few ounces or even less. But, over the course of a month or more, that could still add up to a few cents of gasoline that you’re burning up to lug the police’s hidden device around.
Now, a few cents of this sort of damage may seem insignificant. But – recall the law about junk faxes, which works based on trespass to chattels. If someone sends you an unsolicited junk fax, you can sue them for $500 per violation, even though the actual trespassing cost against you is perhaps a few cents for the used fax paper and toner. (Similar rulings have been applied to spam.)
Someone explain to me why similar logic wouldn’t apply to this case? The police are not attaching a device to a stationary object. They are attaching a device to a piece of property that the owner has to PAY to drive around, while consuming his own resources (gasoline).
I don’t think the police can force you to use your own fuel to carry around their equipment, can they?
Agreed, but still don’t like how it feels.
The main difference is that the junk fax and other laws like that allow for statutory damages instead of actual damages, and there is no such law allowing for statutory damages for the GPS.
The more realistic reason is that it would be completely inane to sue the police to recover a nickel.
Interesting thread.
I think AthanasiusKircher is aiming to construct an argument that the use of the evidence so procured, at the suspect’s own expense, ought not be admissible.
IANAL, but maybe the argument trends along the line that the investigative technique deprived the suspect of his property (money and/or gasoline and/or wear and tear) without compensation or due process and as such is an illegal “taking”.
Then perhaps, having had his property “taken”, without due process, indeed without his knowledge, the suspect has become some sort of agent of the state, at least in part, by using what belongs to the state but used to belong to him (and which he wrongfully believes still does).
Following that, then perhaps the question is, what is the suspect’s actual status as an agent of the state? Is his a witness? An informant? Something else?
If he is not merely a suspect, but also working for the state, then what is the nature of the evidence he is providing (as evidence was defined way upthread?)
It seems to me if we get this far into the argument, then the nature of the evidence is clear - it was coerced or compelled, and it is directed against himself.
In which case, we are right back at the 5th.
Yes, I didn’t make the final steps of where I was going clear. My point is that there are precedents that seem to make relatively inconsequential damages eligible for action under tort law. I think one could make a case that such an idea applies here.
Suing the police for a nickel is admittedly silly. But – if my earlier argument works, that would open the possibilities for actual “damages” in the technical legal sense, which might be applicable to the criminal mischief statutes mentioned above. Of course, it might be hard to make that case.
However, as remarked here, there’s a more complex situation that arises because the car owner is now actually “paying” for the police to investigate him. The fact that the price is the devaluation of personal property is even worse.
To me, this goes far beyond the idea of someone planting a beeper or tracking device in goods that someone voluntarily purchases for a short duration. The cost of carrying around a transmitter is ongoing.
Also, there might be another fifth amendment concern – the fifth amendment also prohibits the government from depriving you of property without due process.
If I’m paying to lug police equipment around without my knowledge, aren’t I being deprived of some of my gasoline without due process?
I know this perhaps sounds silly at face value, but if the police wanted to siphon off a few ounces from my gas tank to power their car to track me around, wouldn’t they have to pay me for it or at least go through “due process” to take said gas from me?
How exactly is this different, from a legal perspective?
Does anyone know if under this precedent, a police officer is required to monitor the devices output on a 24/7 basis, and disable it accordingly?
Say my car is being monitored, and I then drive onto private property, shouldn’t any monitoring or recording by the device cease? Once the vehicle is out of view from public property (or anywhere a police could legally be). Evidence may not be used in court from such an instance, but it could provide information to police which they would otherwise be unable to obtain, and could effect the course of an investigation.
I arrive at a local country club (for lack of a better example). I pass the front gate, and I have the expectation of privacy or at least that is how I understand the gate/fence ruling. Now without a police monitoring (or using some smart software they probably don’t have) and turning off the GPS device once I pass the threshold they are recording my movements on private property, where I could not be observed legally by police under normal circumstances. According to the justification for these GPS devices, they are not doing anything a police could not do legally by tailing the persons car, which is not the case in the example I provided. Even if the data is never viewed by anyone, the I am still being tracked on private property, unless the device is disabled. So if the police do not monitor and disable such a device as to provide due privacy, is it still legal? Assume for the purposes of this example all persons allowed on the club grounds have signed a non-disclosure agreement, and there are fences/signs galore.
Another thing which did not make sense to me, was how the police are sure they were tracking the correct subject without visual confirmation. A GPS device could be blocked, and another object could have begun transmitting the same output. Example: I install a GPS blocker on my car, and plant a transmitter sending the cops signal on my neighbors car. Without a police viewing the tracked car, at any point in time it could be argued the information is unreliable. With this line of reasoning the GPS device could be used for keeping tabs on a subject, but without independent confirmation of the information it would be useless.
A note as to how my initial question arose. In the TV show “The Wire” calls from a wiretapped public phone required an officer to mark a call pertinent within 60 seconds or cease recording. I have no idea if this is required in RL, but it seemed plausible enough.
But it’s also non-testimonial. Without violating the Fifth Amendment, the government can compel you to produce your records – even if there is some de minimus cost associated with their production.
De minimis non curat lex.
Oh?
Cite? Since you brought it up, I don’t care if there is a cost of you providing the cite 
Also, if you claim the records are MINE, how is that? I didn’t generate them, I don’t possess them, I don’t have access to them. I paid for them, in part at least, but in what sense are they mine to produce, which seems to mean an after-they-were -created timeline is in effect?
And they can do this without a warrant, or without some other specific circumstances?
Which is the reason why I started with the junk fax example. This may be “de minimis” if the police do it to one or two people. But without restriction, they could do it to everyone, at which point the collective cost is definitively no longer “de minimis.” (Not even getting into the question of whether private parties could be allowed to do such things.)
The judgment raises couple of questions to me:
[ol]
[li]Is there a limit to the mass a cop can attach to your car? Obviously at some point it makes a difference, where do you draw the line? If a cop knew where you were going, could they attach objects to your car which they need to ship to a particular location?[/li]
[li]Does the target have to suspected of a crime, or could they just monitor people for the heck of it? Would it be legal one day for the cops to clandestinely attach pollution sensors to my tail pipe? Or some sort of device that could tell if I’ve run a red light or failed to signal a lane change? Could a city decide to attach devices to all the cars in a general population?[/li][/ol]
Something just feels wrong about it to me.
Sure:
And the de minimis cost aspect should be obvious: you’re turning over physical papers, be they copies or originals.
Er… OK. If the records aren’t yours, how could you possibly have a Fifth Amendment interest in them?
So what?
The law doesn’t allow you to tote up the damages from sixteen separate different petty thefts and charge the accused with one count of grand larceny.
So if they place a million GPS units, the “damage” done in wasted gasoline is not added up and then used as the basis for one claim of vandalism.